tation is essentially a judicial function but there has been a long controversy as to whether judges make law or merely apply it. The familiar saying of Bishop Hoadley, "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law giver to all intents and purposes," points to the former view.81 The true distinction seems to depend upon the generality or concreteness of the interpretation. Where judicial interpretations of the law extend to merely the case before them, judges do not make law. Where their opinions furnish precedents for the future they do. Thus if an interpretation of law merely renders the controversy res adjudicata, it is not law-making. If, on the other hand, the principle stare decisis is applied the interpretation assumes a legislative character.82 The same distinction exists in the decision of international controversies. A decision upon the applicability of a treaty, or a principle of international law to a particular case, and the determination of the obligation resulting therefrom, has to do with the meeting of the responsibility and not with the making of the treaty or the principle of law. Consequently foreign nations are entitled to hold a controversy upon which decision has been made under authority of the President, res adjudicata. But can they regard such a decision and the interpretation of international law or treaty upon which it is based as going farther than this and as binding the United States when similar controversies arise in the future.83 "The President," says ex-President Taft, "carries on the correspondence through the State Department with all foreign countries. He is bound in such correspondence to discuss the proper construction of treaties. He must state our attitude upon questions constantly arising. While strictly 81 Sermon preached before the King, 1717, Works, 15th ed., p. 12, Gray, Nature and Sources of the Law, pp. 100, 120. Statutory construction is practically one of the greatest of executive powers. . . . One might say, Let any one make the laws of the country if I can construe them." (Taft, Our Chief Magistrate, p. 78.) "I recognize that judges do and must legislate. But they can do so only interstitially: they are confined from molar to molecular motions." (Holmes, J., dissent in Southern Pacific v. Jensen, 244, U. S. 205, 1917.) ... 82 See Gray, op. cit., chap. IX, and especially sec. 498; Cooley, Constitutional Limitations, 6th ed., pp. 61-68. 83 Taft, op. cit., p. 113, see also infra, sec. 172. he may not bind our government as a treaty would bind it, to a definition of its rights, still in future discussions foreign Secretaries of other countries are wont to look for support of their contentions to the declarations and admissions of our Secretaries of State in other controversies as in a sense binding upon us. There is thus much practical framing of our foreign policies in the executive conduct of our foreign relations. "Whenever our American citizens have claims to present against a foreign nation, they do it through the President by the State Department and when foreign citizens have claims to present against us, they present them through their diplomatic representatives to our State Department, and the formulation and the discussion of the merits of those claims create an important body of precedents in our foreign policy." As President Taft points out, it is inevitable that the principle of stare decisis will be of weight in the settlement of future controversies and consequently that executive practice will in fact establish an interpretation of responsibilities from which it will be difficult for future Presidents to escape. In theory, however, it is believed that foreign nations can not hold the United States absolutely bound by decisions or interpretations under authority of the President alone, except with reference to the specific controversy under discussion.84 Thus explanatory or interpretive notes, designed to control the general application of a treaty in the future, are part of its making, whether they precede, accompany, or follow exchange of ratifications and do not internationally bind the United States unless foreign nations had reason to suppose that the full treaty power had consented to them. 85 84 In the Pious Fund Arbitration Case (U. S. v. Mexico), 1903, the court held that while the principle stare decisis was not wholly applicable to arbitration, the principle of res adjudicata was: "Considering that all the parts of the judgment or the decree concerning the points debated in the litigation enlighten and mutually supplement each other, and that they all serve to render precise the meaning and the bearing of the dispositif (decisory part of the judgment) and to determine the points upon which there is res judicata and which thereafter can not be put in question; "Considering that this rule applies not only to the judgments of tribunals created by the State, but equally to arbitral sentences rendered within the limits of the jurisdiction fixed by the compromise; "Considering that this same principle should for a still stronger reason be applied to international arbitration, etc." (Wilson, Hague Arbitration Cases, Boston, 1915, p. 9.) 85 The United States refused to consider itself bound by explanatory notes exchanged prior to exchange of ratification of the Mexican peace treaty of 1848 and the Clayton-Bulwer treaty of 1850 though Mexico and Great 39. Understandings do not Require Forbearance in Pressing International Claims. The distribution of constitutional powers among various organs in the national and state governments of the United States often makes it very difficult for the President actually to satisfy claims. which he has admitted to be valid under international law. In fact these constitutional limitations are well known to foreign nations. The United States has sometimes urged such difficulties as an excuse for failure to meet the obligation promptly. While such a plea has no validity whatever, under international laws it remains to be seen whether there is an international understanding whereby nations withhold pressure on just claims in view of constitutional difficulties in the delinquent state. 66 "Every nation," said Justice McLean, may be presumed to know that, so far as the treaty stipulates to pay money, the legislative sanction is required. . . . And in such a case the representative of the people and the States exercise their own judgment in granting or withholding the money. They act upon their own responsibility and not upon the responsibility of the treaty-making power." 87 The theory is attractive for delinquent states. Unfortunately for them it is not practiced. No such understanding of international law exists. The United States did not withhold pressure from France when she pleaded the refusal of her legislature to appropriate for carrying out the claims treaty of 1831.88 Nor have European nations withheld pressure from the United States in similar circumstances. Congress has always, though generally with much protestation by the House of its untrammeled discretion, appropriated money where treaty or international law has required,s Britain protested. See Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 85, 381; Wright, Minn. Law Rev., 4: 16; supra, secs. 27, 28. It has been the usual practice to submit such explanatory notes to the Senate. See Crandall, op. cit., pp. 86-89; Moore, Digest, 5: 207, 284. 86 See supra, sec. 33 et seq. 89 87 Turner v. Am. Baptist Missionary Union, 5 McLean, 347, 1852, paraphrased in Wharton, Digest, 2: 73; Moore, Digest, 5: 222. 88 President Jackson recommended reprisals on this occasion. (Moore, Digest, 7: 123-126.) See also note of Secretary of State Livingston to the French government, supra, chap. 1, note 3, and of Mr. Wheaton, Minister to Copenhagen, to Mr. Butler, Attorney General, Jan. 20, 1835. Wharton, Digest, 1: 36. 89 Infra, secs. 149, 256. but the states have often failed in performing essential acts. Thus Louisiana failed to take sufficient interest in apprehending those guilty of lynching Italians in the nineties, nor did she take measures adequate to prevent the frequent repetition of these gross violations of the Italian treaty of 1871. In the state of congressional legislation the power of the national government to act within the states was not adequate and Italy was so informed but there was no abatement of diplomatic pressure. In fact, Italy at length withdrew her ambassador and the United States was forced to pay the indemnity demanded.00 90 Experience seems to show that it is unwise to assume the existence of such international understandings. Nations are wont to demand the pound of flesh. "To calculate upon real favors from nation to nation," said Washington, "is an illusion which experience must cure, which a just pride ought to discard." 91 Such understanding may be well to follow in pressing claims against others but to expect that others will observe them in pressing claims against us is unwise.92 The United States should so modify its laws and the understandings of its own constitution that acknowledged obligations of the nation under international law and treaty will be promptly executed. Thus from the standpoint of international law, the national authority for mecting international responsibilities is the important element in the control of foreign relations, and in the United States this authority is the President acting through the Secretary of State. Foreign nations are entitled to bring their grievances to him and to expect from him redress according to the standard of international law and treaty. Constitutional limitations upon his power to effect the redress are to them unknown, either by law or understanding. 90 Moore, Digest, 6: 838 et seq. See also infra, secs. 120, 149. 91 Farewell Address, Sept. 17, 1796, Richardson, op. cit., 1: 223. 92 Vattel makes a similar distinction: " Since the necessary (natural or moral) law is at all times obligatory upon the conscience, a Nation must never lose sight of it when deliberating upon the course it must pursue to fulfill its duty; but when there is a question of what it can demand from other states, it must consult the voluntary (positive) law whose rules are devoted to the welfare and advancement of the universal society," op. cit., Introduction, sec. 28. tence. With the making of international agreements on the other hand foreign nations are entitled to assume no such Presidential omnipoThe United States cannot be bound by new engagements until the organs designated by the Constitution have acted. In the meeting of international responsibilities, international law is prior, in the making of international engagements the Constitution is prior. PART III. CONSTITUTIONAL LIMITATIONS UPON THE FOREIGN RELATIONS POWER. CHAPTER V. LIMITATIONS UPON STATE POWERS. 40. Position of the Foreign Relations Power under Constitutional Law. From the standpoint of international law the essential element in the foreign relations power of any state is the authority recognized by foreign states as representing the state and competent to meet its international responsibilities. We have seen that in the United States this authority is the President acting through the Department of State. Foreign states with claims or complaints need know nothing of constitutional powers or limitations. They are entitled to present their cases to the President through the State Department and to demand of him satisfaction according to the measure of international law and treaty. If he is unable to obtain it the United States is liable to such measures of redress as international law may permit the claimant state. In sharp contrast, is the position of the foreign relations power under constitutional law. The question is not of responsibility but of power. Under constitutional law the foreign relations power consists of those organs of government competent to perform the various acts connected with the conduct of foreign relations. |